Workplaces are filled with potential hazards, which is why most businesses carry workers’ compensation insurance to protect their employees in the event of unexpected injuries. It is extremely important for you to know your rights when it comes to workers’ compensation benefits. Your rights to receive workers’ compensation benefits begin the moment you are hired. Additionally, workers’ compensation applies to all employees, regardless of the number of workers employed, and it includes volunteer firemen, rescue workers, state park and forest workers and anyone else who performs services in exchange for wages in this Commonwealth, including immigrants. Even if you are a loyal, long-time employee, you may find yourself fighting your employer or their insurance company for work comp benefits after a work injury.
The Pennsylvania Workers’ Compensation Act is a state-wide, no-fault insurance system of benefits designed to compensate all injured workers for lost wages and medical expenses. The system was not designed to replace all the wages lost by the injured worker, but only a percentage of those wages in a non-taxable form of weekly or bi-weekly benefits. The Workers’ Compensation Act does not provide for non-economic damages such as pain and suffering, however it does pay for all injuries and occupational diseases that occur during the course and scope of one’s employment.
Since Workers’ Compensation is “no-fault” insurance, workers’ compensation provides benefits such as paid medical treatment, wage supplementation, vocational rehabilitation, and more to employees who suffer injuries as a result of job-related duties, regardless of who caused their accident. This means that even if a worker’s own negligence or mistakes led to their injuries, they still have a right to workers’ comp benefits. Although benefits are available, failures to provide enough notification and documentation to an employer, meet requirements and deadlines, and ensure an accurate claim can cause claims to be denied, delayed, or underpaid. As such, working with experienced legal representation becomes critical to effectively navigating the process and securing all needed benefits.
What is a Work Injury?
According to Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act, 77 P.S. §411(1), a “work injury” is any injury, medical condition or disease that is caused by a person’s job. The Act does not list specific types of injuries, other than the requirement that the condition must be related to the worker’s employment. In addition, a work injury also includes occupational diseases and pre-existing conditions that are aggravated by a person’s job.
Report the injury immediately
Whether it’s an acute traumatic injury or a cumulative trauma injury such as carpal tunnel syndrome, you need to report the injury to your supervisor immediately and make it known the injury is directly related to your job. In Pennsylvania, Section 311 of the Workers’ Compensation requires that notice of an injury be given within twenty-one (21) days after it occurs, or at the latest, within 120 days of the injury. In general, you should tell your supervisor or boss as soon as you are hurt, even if you think it is a minor injury or will go away without requiring medical care.
Have your supervisor prepare a company accident report
You should always request an incident report from your supervisor, but if he or she is hesitant or fails to comply, you should write them an email stating the facts of your case and/or inform human resources as well. We advise writing an email because it is traceable, includes a time and date stamp, and automatically drops you your own copy in your sent file.
Request a copy of the incident report
Whether you receive a report from your supervisor or prepare your own email, keep a copy in a safe place; this goes for all correspondence you have with anyone regarding your injury. If you’re in a union, you should also tell your steward that you were injured and that you reported your injury to your supervisor.
See a doctor
You may not have a choice as to which “doctor” you treat with. You may need to see a medical provider authorized by your employer or your employer’s insurance company. Under Section 306(f.1)(1)(i) of the Pennsylvania Workman’s Comp Act, an injured worker only has to treat with a “company doctor” for 90 days from the first visit only if the employer creates a list of at least six designated health care providers, provides written notification of the employee’s rights and duties to the employee, and obtains the employee’s written acknowledgment that he or she has been informed of these rights and duties. If an employer fails to do this, an injured worker can receive treatment from any doctor or provider. Regardless, be sure to tell the doctor how work was responsible for your injury. If you do not think that you’re being cared for properly or that your doctor has not taken careful notes, give the doctor a written statement of how your work caused you injury and keep a copy of it.
Follow doctor’s orders
If you fail to comply with all medical directions, it gives your employer leverage to argue that you chose not to get proper care and purposely remained sick so that you would not have to return to work.
Acceptance of Your Claim; When Will You Get Paid?
Under the Workers’ Compensation Act, an employer and their insurance company have 21 days after they receive notice of the injury to either agree that an injury is work-related (and issue a Notice of Compensation Payable or Notice of Temporary Compensation Payable) or to deny the claim (and issue a Notice of Compensation Denial). Before you can receive wage losses, there must be medical proof from a doctor confirming your injuries and whether you can return to work or there are any restrictions on the type of work you can do. If you get a Notice of Denial, you can petition for a hearing before a workers’ compensation judge. The employer can also withdraw a temporary approval of benefits within 90 days.
You have to be disabled for at least 7 days before you are able to receive any workers’ compensation payments. Each day of disability after 7 days is payable; once you reach at least 14 days of disability, all days of disability going back to day one are payable. If your claim is accepted and you’re out of work more than 14 days, wage benefits begin on the first day of missed work. Medical benefits begin on the day of the injury. Total disability benefits do not have a time limit.
How Much Will I Get Paid?
Once you have suffered a work-related injury which disables you from your time-of-injury job, the employer must provide to the insurance carrier your wage records for the year preceding the injury. The insurance carrier is then required to determine your average weekly wage which will form the basis of what you will be paid by the workers’ compensation insurance carrier. Under Pennsylvania law, you are entitled to about two-thirds of your weekly wage, up to a maximum amount. The actual amount that you are owed is based on your gross average weekly wage. To calculate your average weekly wage, the carrier starts with the date of injury and goes back four 13-week periods and averages each period (this is one year or 52 weeks). The lowest 13-week period is then disregarded, and the highest 3-week period averages are then added together and then divided by 3 to determine your average weekly wage. Your average weekly wage includes overtime, bonuses, tips that you reported to the IRS, vacation pay, and even payments for lodging. If you receive the same amount each week, your average weekly wage is your gross weekly paycheck. If you are an hourly worker, your average weekly wage will depend on how long you have worked for the employer where you were injured.
Keep in mind that your average weekly wage is frozen from the date of injury and going forward. This means, unfortunately, that wage increases you would normally receive at your job are not considered when determining your wage benefits going forward.
In addition, there are minimum and maximum benefits.
2019 Pennsylvania Workers’ Compensation Rate Schedules
Pursuant to the Workers’ Compensation Act, Section 105.1 and 105.2, the Department of Labor & Industry has determined the maximum compensation for injuries occurring on and after Jan. 1, 2019 shall be $1049.00 per week. The weekly compensation rate is to be 66 2/3 percent of the employee’s average weekly wage and falls between $1,573.50 and $786.76. The weekly compensation rate is $524.50 if the employee’s average weekly wage is between $786.75 and $582.78, and 90 percent of the employee’s average weekly wage if it is $582.77 or less.
There are other potential factors in calculating your average weekly wage. Our law firm has found that the average weekly wage is one of the most frequently miscalculated items by workers’ compensation insurance carriers. Because these errors can result in significant money over time, you should work with an experienced workers’ compensation attorney if you suspect that your average weekly wage is not accurate.
Who Pays My Medical Bills?
Doctors, hospitals and other licensed medical providers are paid for their services based upon a fee schedule that changes annually. What you need to know is that injured workers are never required to pay a co-pay or any other fee for medical care related to the work injury. Instead, your doctors and other providers must submit their bills to the insurance company for payment.
How Long Can I Receive Benefits?
There is no set time limit to receive benefits. It is possible that an injured worker will receive workers’ compensation benefits until he or she is ready to go back to work or settles his or her case. However, most employers will try to limit how long a worker can receive workers’ compensation benefits in myriad ways.
I Received a Utilization Review, What Is That?
Employers file utilization reviews (UR) in order to challenge the reasonableness or necessity of some or all of the care a worker receives. If you receive a UR, you should give a copy to your lawyer immediately. Injured workers also have the right to supply a personal statement to the reviewer explaining why the challenged treatment is necessary or helpful.
Can I Sue My Employer?
The answer to this question is almost always, “No.” In exchange for receiving workers’ compensation benefits, an injured worker gives up the right to sue his or her employer for pain and suffering. There are very few exceptions to this rule. This does not mean that you cannot sure other parties that may have been responsible for your injuries. In fact, you can often sue other parties. For example, if you are involved in a work-related motor vehicle accident and sustained injuries as a result of the negligence of a third party, you may be able to file a personal injury action against the third-party seeking pain and suffering for your injuries.
Can I Sue the Party That Injured Me?
Yes. In many cases, you can file a lawsuit for your pain and suffering against persons or companies whose negligent conduct caused your injuries. Often, injured workers file products liability, motor vehicle or slip and fall claims, so it is important to speak with an attorney about these claims as soon as possible. That way, your lawyer can investigate your case, get witness statements, have experts review the case, etc. If you think you may have a case against another party, you should contact an attorney as soon as possible.
Product liability lawsuits – Many workplaces are filled with consumer products, specialized tools, and various types of machinery and equipment. When any of those products are defective, they pose the risk of malfunctioning or failing and causing serious injuries. In these situations, workers may have the right to file product liability lawsuits that aim to hold product manufacturers accountable for injuries caused by defectively designed, manufactured, or marketed products.
Can I Still Collect Social Security, Unemployment or Disability Benefits?
Yes. You may be able to receive Social Security, unemployment or other benefits as a result of your injury (and possibly because of other conditions you may have). In some cases, if you receive these benefits, either your workers’ compensation or the other benefits will be reduced. Regardless, injured workers should speak with an attorney to determine whether they can receive Social Security, unemployment or disability benefits and how these benefits may integrate with your receipt of workers’ compensation benefits.
Do I Have to Report Other Income That I Earn?
Yes, the law requires injured workers to report any income earned while out of work on workers’ comp. Before doing so, you should consult a lawyer to make sure you are reporting the information correctly. If you had more than one job before and/or after you got hurt, this may affect the benefits you can receive. You may even be entitled to more wage losses than you thought. Be safe and consult an attorney.
What Is an IME? Do I Have to Attend?
Section 314 of the Pennsylvania Workers’ Compensation Act provides that the employer/insurance company is entitled to have you examined by a doctor whom it chooses at a reasonable time and place. These doctors are not your treating doctors and are being paid by your employer to perform this evaluation. Most Judges have interpreted this provision to allow for such an examination twice a year. Although you are generally required to attend these exams (which are sometimes called IMEs), there are certainly exceptions.
Do I Really Need a Lawyer to Represent Me in My Workers’ Comp Claim?
Yes. The insurance company will have a lawyer and you will be at a severe disadvantage if you do not retain a lawyer as well. The law is very complicated, and it is extremely difficult to win a case without an attorney. Attorneys who concentrate their practices in workers’ compensation know the law and procedures. Thus, having a good attorney can make the difference between winning and losing a case or between getting a large lump sum settlement or a small one.
What Should I Do If I Receive a Petition to Terminate, Modify or Suspend My Benefits?
If you receive a Petition to Terminate, a Petition to Modify or a Petition to Suspend your benefits, you should contact an attorney immediately. These petitions mean that your employer or its insurance company is trying to try stop or reduce your wage loss and/or medical benefits. It is very important for you to meet with an attorney so that you can defend yourself.
What Do I Do If I Receive a Notice of a Vocational Examination?
In some circumstances, an employer may be entitled have you examined by a vocational expert. That is why if you receive a Notice of a Vocational Examination, you should contact an attorney immediately. It is possible that you might not have to attend. If you do have to go to the examination, your attorney will prepare you for the meeting and may attend or send a representative to the vocational examination.
What Do I Do If I Receive a Notice of an Impairment Rating Examination?
Under the Workers’ Compensation Act, an employer may request that an injured worker attend an Impairment Rating Examination (IRE). An IRE can have an effect on a claimant’s right to receive wage losses. Therefore, if you receive a Notice of an Impairment Rating Examination, you should contact an attorney immediately. It is possible that you might not have to attend. If you do have to go to the IRE, your attorney will prepare you for the meeting and may attend or send a representative with you.
Does Workers’ Compensation Benefits Protect My Job or Other Benefits?
Not necessarily. Unfortunately, unless you are a union member or have an employment contract your receipt of workers’ compensation benefits does not necessarily protect your job or other employee benefits such as health insurance. We reside in an employment-at-will state so an employer is not obligated to leave your job open forever. As a result, if you are out of work and receiving workers’ compensation benefits, your employer may be able to fire you or lay you off if they cannot reasonable accommodate your physical restrictions. However, an employer cannot fire you or lay you off solely because you made a workers’ compensation claim. In addition, an employer does not have to maintain your health insurance or other benefits while you are receiving workers’ compensation benefits. You may, for example, receive what is called a COBRA Notice, allowing you to pay for medical insurance at your own expense. If you do, you should discuss this with your attorney.
PA Workers’ Compensation Rights
The right to benefits
You are guaranteed certain benefits if you were injured in a workplace accident or simply injured in the course of your job. This includes free medical coverage and wage loss benefits for as long as you are off the job.
The right to negotiate a lump sum settlement
There are pros and cons to cash settlement of your claim versus ongoing benefits. Our attorneys can help you decide if this is right for you.
The right to control your treatment
The employer’s preferred physicians may not be qualified to diagnose and treat your injury, and may not have your best interests at heart. In most cases, you can choose your own doctors.
The right to a hearing
If the employer tries to deny, reduce or terminate your benefits, or if your disability pay is calculated incorrectly, your case must be heard by a workers’ comp judge. That decision can also be appealed.
The right to recover from your injury
Your employer cannot force you back to work. Only a doctor can clear you for light duty or regular duty.
Exploring your available options for securing needed compensation after a work-related injury is of critical importance, not only when it comes to easing the immediate burdens created by medical bills, lost income, and being out of work, but also recovering the resources to obtain the medical care you need to improve, make ends meet, and rebuild your life.
By working with our experienced legal team at Wilk Law you can benefit from skilled attorneys who have the necessary breadth of experience to help you through the most appropriate path toward compensation. Discuss your case, rights, and options today when you contact us for a free consultation. We can explain your rights and the value of your claim in a free consultation.